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Document  No.  16.] 

Session  1869-70. 

Ordered  to  be  Printed. 

M.  S.  LiTTLEFiELD,  Statc  Printer  and  Binder. 


STATE  OF  NORTH  CAROLINA, 

Attorney  General's  Office, 
Raleigh,  November  29t]i,  ISGD. 

Hon.  JtisEi'ii  AV,  JIoldkn, 

SpeaJier  of  House  of  Representatives : 

Dear  Sir  : — Yours  containing  a  Resolution  of  the  House 
asking  an  opinion  on  certain  clauses  in  the  Constitution 
therein  named  has  been  received,  and  you  will  please  transmit 
to  your  Honorable  body  the  enclosed,  in  answer  to  their 
request. 

Respectfully, 

L.  P.  OLDS, 
Atfy  General. 

CONSTRUCTION  OF  THE  HOMESTEAD  LAW. 

As  to  whether,  1.  Sections  1  and  2  of  article  10  of  the  Con- 
stitution liave  the  cflect  to  exempt  from  sale  the  property 
therein  mentioned,  on  execution  or  other  final  jn'ocess,  founded 
on  a  judgment  arising  out  of  tort;  or  a  judgment  founded  o)i 
a  conviction  for  crime  i 

11.  Or,  is  there  any  interest  in  the  land  subject  to  execution 
at  any  time  after  tlie  setting  ajoart  the  "  Homestead  ?" 

To  make  the  subject  ])lainer,  and  put  it  beyond  all  cavil. 
Jet  me  call  attention  to  the  rudiments  of  tlie  law  wlicre  crime 


s 

2  \^L^  DocTMENT  No.  10.  [Session 

is  concerned,  as  an  evil  to  society,  witli  the  way  of  correctino: 
it.  By  putting  both  State,  and  jiersons  \vronged  in  their  true 
place,  and  the  rest  ot  mankind  as  mere  actors  in  matters  ex 
contractu,  nothing  is  easier  than  to  see  the  exact  object  be- 
fore us. 

Crime,  in  all  cases,  includes  an  injury.  Murder  is  an  in- 
jury to  the  life  of  an  individual ;  but  the  law  of  society  con- 
siders principally  the  loss  which  the  State  sustains  by  being 
deprived  of  a  member,  and  the  pernicious  example  thereby 
set  for  others  to  do  the  like.  Robbery  may  be  considered  in 
the  same  light ;  it  is  an  injury  to  private  property  ;  but  were 
that  all,  a  civil  satisfaction  in  damages  might  atone  for  it ; 
X\\Qj>nl)Uc  mischief  is  the  thing  for  the  prevention  of  which, 
our  laws  have  made  it  a  high  oflence.  In  gross  and  atrocious 
injuries  the  private  wrong  is  swallowed  up  in  the  public;  and 
indeed,  as  the  public  crime  is  not  otherwise  avenged  than  by 
forfeiture  of  life  and  property,  it  is  impossible  afterwards  to 
make  any  reparation  for  the  private  wrong  which  can  only  be 
•  had  from  the  body,  or  goods  of  the  aggressor. 

But  there  are  crimes  of  an  inferior  nature  in  which  the 
public  punishment  is  not  so  severe,  aifording  room  for  pri- 
vate compensation  also ;  and  herein  the  distinction  of  crime 
from  civil  injuries  is  very  apparent.  Yov  instance,  in  the  case 
of  battery,  or  beating  another,  the  aggressor  may  be  indicted 
for  this  at  tlie  suit  of  the  King,  for  disturbing  tlte  peace,  and 
be  punished  criminally  by  tine  and  imprisonment,  and  the  party 
beaten  may  also  have  his  private  remedy  by  action  of  trespass 
for  the  injury  which  he  in  particular  sustains,  and  recover  a 
civil  satisfaction  in  damages.  The  sum  whereof  is,  punisli- 
ments  are  incident  to  crimes  and  misdemeanors,  being  devised, 
denounced,  and  inflicted  by  human  laws,  in  consequence  of 
disobedience,  or  misbehavior  in  those,  to  regulate  whose  con- 
duct such  laws  were  respectively  made,  embracing  the  one  idea 
of  the  power,  the  end,  and  the  measure  of  /lui/ian  punishment. 
See  Blackstone's  Comm. 

Xow,  though  in  practice  there  may  be  seen  slight  de})artures 


^      lS60-'70.]  Document  No.  16.  a 

V  from  the  special  puDishments  this  Avriter  mentions  as  the  law 
3  of  England,  yet  by  keeping  in  view  the  aim  and  end  of  all 
government,  these  very  first  acts  of  sovereignty  looking  out 
tor  the  protection  of  the  race,  are  re-produced  in  similar  forms 
in  every  country ;  nor  until  inoral  suasion  becomes  the  only- 
rule  ot  conduct,  will  we  sec  anything  different.  For  if  we 
commute  the  gallows  for  imprisonment  for  life,  the  same  loss- 
of  the  crin)inal  to  society  is  felt  with  no  great  modification  ; 
and  so  soon  as  this  modification  is  understood  to  be  for  the 
worse  instead  of  the  better,  we  must  of  moral  necessity  regard 
the  due  and  old  time  exactions  of  ages  and  the  law  of  God. 

But  there  is  another  view  in  which  this  part  of  the  subject 
should  be  considered.  This  primar}'  law  being  grounded  on 
the  common  consent  of  mankind,  and  even  when  viewed  in 
tiic  milder  light  of  offences  mala prohibita,  resting  on  the  con- 
sent of  whole  nations  tacitly  or  express,  investing  the  sover- 
eignly with  the  right  of  making  laws  and  of  enforcing  obedi- 
ence by  exercising  upon  their  non-observance,  severities  ade- 
(piate  to  the  evil,  cannot  be  denied  or  obstructed  by  any  les» 
comprehensive  legislation.  Hence,  no  mere  Convention  of 
nations  can  annul  the  rightfulness  of  punishment  to  be  in- 
flicted upon  crimes  mala  in  se,  nor  smaller  bodies  as  of  States- 
entrench  on  the  punishments  nccessari/  for  the  smaller  of- 
fenders. 

If  then  the  ])ubli(;  welfare  re<]uires  that  the  grosser  crimes 
be  [finished  by  both  death  and  confiscation,  and  the  lesser  by 
imprisonment  and  a  sacrifice  ot  property,  to  both  State  and 
individuals  for  the  wrong  done  them,  any  law  whereby  these 
remedies  are  weakened  is  a  public  and  a  private  evil,  and  not 
to  ])C  tolerated.  To  relax  the  hold  on  vice  by  conij)romi6ing 
for  lesser  punishment  than  reason  allows,  is  giving  reward  for 
further  criiiie  even  t'roni  tlic  same  person,  making  excessive 
nuxhjration  a*  bad  as  excessive  ])unishment. 

The  (luestion  here  ariacs,  where  both  soc'ety,  in  the  ])erson 
of  the  State  and  individuals,  are  damaged  by  such  misconduct 
t»f  criminals,   or   wr(>ng(k>ei'.<,    wliich   shall  be  first  redressed  L 


TG'T'S?! 


4  Document  No.  10.  [Session 

For  the  liiii-hcrc'riines,  as  treason,  we  liave  already  said,  tlie  sov- 
ereignty claims  both  life  and  property,  leaving  nothing  for  the 
private  citizen.  In  smaller  offences  it  was  for  a  long  time  the 
rnle  that  the  civil  right  to  sue  for  the  injnry  the  party  has 
received  did  not  in  general  merge  in  the  lelony  or  become 
destroyed,  but  was  only  snspended  until  ho  performed  his  duty 
to  society  by  an  endeavor  to  bring  the  offender  to  justice,  and 
after  the  party  on  whom  suspicion  was  fixed  had  been  con- 
victed or  acquitted  without  collusion,  the  prosecutor  might 
support  an  action  for  the  same  cause  as  that  on  M'hich  the 
criminal  prosecution  was  founded.     12  East  409, 17  Yesey  329. 

But  this  doctrine  was  modified  in  the  case  of  Jones  vs.  Clay,  1 
Bos.  and  Pul.,  191,  where  it  was  held  that  the  Court  of  Common 
Pleas  will  ccmpel  a  party  who  has  proceeded  hof/i  by  indict- 
ment and  action  for  the  same  assault,  to  make  his  election 
upon  which  he  is  to  rely,  and  though  formerly  held  that,  in 
general,  if  the  party  moved  for  a  criminal  information  he  must 
abandon  any  action,  that  doctrine  seems  to  have  been  broken 
in  upon  l)y  a  recent  case  in  the  Court  of  Iving's  Bench,  Caddy 
vs.  Barlow,  1  Man.  and  Byl.,  275,  where  it  was  held  in  an 
action  by  A,  for  a  malicious  prosecution  by  C,  of  an  indict- 
ment against  A  and  1>,  and  that  a  rule  for  a  criminal  informa- 
tion obtained  by  A,  and  maile  absolute,  was  '7io  Ixt)'  to  the 
■  action . 

In  New  "Wuk,  any  ])erson  injured  by  a  felony  for  which  the 
offender  i--  I'lnninitted  to  the  State  prison  can  recover  damages 
in  a  ;-',iit  Mg.iin^t  the  trustees  of  tlie  feloirs  estate.  2  Iw.  S., 
700. 

\\<  the  act  of  Congress,  March  17!>7,  and  by  that  of  July. 
17'.*''.  Xatidiiiil  and  State  priority  is  considered,  and  certain 
pre!  Tcu'cs  given  in  collecting  debts,  going  to  show  that  sov- 
crei;i';i;t  >  re-ci'vc  certain  I'ights  to  themselves  when  contrasted 
with  M:;-  riiize!:. 

'It  tliiis  being  seen  that  from  treason  down  to  trespass,  all 
'throiig'i  the  grades  of  crime,  the  State  but  executes  the  trust 
reposed   in  her   by  society,   as   a   tirst   duty,  by   punishing   tlie 


ISOS- CO.]  Document  Kg.  IC.  5 

guilty  and  jirotectiiip;  the  innocent,  and  life,  with  liberty  and 
pi'0]ierty  in  \aried  deo-rees  being  responsible  for  this  guilt  as  a 
corrective,  we  come  directly  and  fairly  to  the  question  before 
us,  and  are  prepared  to  test  the  constitutional  law  of  exemption 
])y  such  standard. 

Tn  the  very  beginning  the  Convention  nut  only  kept  the 
above  principles  and  rules  in  mind,  but  with  honorable  lenity 
protects  even  parties  ex  contractu  by  three  divisions.  1.  The 
taxes  must  be  paid.  2,  Laborers  and  mechanics  have  a  lien 
tiiereon.  3.  The  land  must  have  been  paid  for.  All  these  arc 
-civil  matters,  and  the  Convention  might  have  included  other 
liabilities  as  a  matter  of  grace  to  creditors,  reaching  even  al] 
debts  previously  contracted,  but  as  the  Homestead  was  alone 
the  i^roduct  of  stern  misfortune  and  designed  as  some  protec- 
tion to  the  debtor,  only  certainexemptions  were  to  be  expected. 
Tlicse  are  allowed,  the  State  in  this  its  sovereign  meeting  in 
■convention  never  tor  a  moment  surrendering  a  jot  of  the  more 
•essential  matters  of  in'otection,  not  simply  to  one  man,  but  to 
itself  and  its  citizenship  at  large,  in  case  of  crime.  The  pro- 
tection is  intended  for  the  poor  and  honest  debtor,  not  the 
criminal.  Such  law  would  be  absurd.  It  would  be  offering 
revmrd  for  crinic^  and  what  would  all  other  provisions  of  the 
■■Constitution  or  acts  of  Assembly  avail  if  vice  be  let  run  ram- 
pant and  society  go  to  pieces  in  the  general  storm  of  cor- 
ruption. 

Therefore,  no  (piestion  need  be  raised  respecting  this  exemp- 
tion, as  to  the  State  or  ])erson  vrronged.  It  only  relates  to  debt 
as  such  ;  and  by  emphasising  the  language  as  it  should  be,  the 
whole  matter  becomes  plainer,  even  thereby :  ''  the  collection 
Kii  any  deht^  the  law  taking  care  to  say  what  debts  should  be 
exenij)ted,  showing  that  even  some  civil  contracts  ought  to  be 
9*egarded,  and  certainly  all  those  weightier  forms  of  liability 
vhicli  no  single  convention  can  have  the  authority  to  annul,  but 
"which  would  more  correctly  require  the  voice  of  society  at  large 
as  ]>reviously  s:iid. 

And  could  we  snpjiose  that  the  Convention   thus  undertook 


6  Document  No.  16.  [Ses.  1869^'7Ct 

to  legislate  away  the  right  of  self  protection  by  niodes  hitherto- 
go  certainly  and  widely  recognized,  it  would  be  lodged  in  the 
persons  of  the  wife  and  children  as  trustees  of  the  exempt^ 
sufferers  from  crime  having  redress  as  if  no  attempt  at  inva- 
sion of  the  sacred  and  solemn  rights  of  the  principal  parties  in 
all  good  government — the  State  and  the  wrongful  sufferer.  I 
am  sure  that  the  Convention  never  supposed  its  conduct  should 
be  charged  with  so  great  departure  from  all  right  reason. 

By  examining  the  old  insolvent  law  of  the  State,  it,  in  its 
})rovisions  carried  out  the  like  view  as  here  stated,  naming 
debts  proper  in  contradistinction  to  dues  for  misconduct  or 
guilt, 

II.  As  to  the  second  question,  section  5,  of  Article  X,  of  the 
Constitution  explains  itself:  After  widowhood  ceases,  the 
exemption  opens  to  law.  Section  8  shows  how  the  children 
are  protected  and  how  long.  The  reply  to  the  first  part  of  the- 
inquiry  settles  the  whole  subject,  and  which  it  is  hoped  may 
suffice  for  answer  to  the  resolution  of  the  House. 

L.  P.  OLDS, 
Attorney  Generals 


^ 


saiaoMV  SOT 


Ljctulord  : 
PAMPHLET   BINDER 

Syrocuse,  N.   Y. 
Stockton,  Calif. 


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